CMS Vaccine Mandate Survives, OSHA Vaccine Requirement Dead in the Water

by | Jan 13, 2022

On January 13, 2022, the U.S. Supreme lifted a pending stay against the healthcare final rule, the Emergency Standard issued by the Centers for Medicare and Medicaid Services, allowing the standard, and vaccine mandates in healthcare, to move forward.  The CMS standard requires entities covered by CMS, including hospitals and nursing homes, to impose an employee vaccine mandate to continue receive reimbursement from Medicare or Medicaid for health care services.  The majority of the Supreme Court reasoned that “Congress has authorized the Secretary (Health and Human Services) to impose conditions on the receipt of Medicaid and Medicare funds” and that “COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease.”  The Court held that the scope of the mandate is within the authority of CMS, which is charged with ensuring that providers caring for Medicare and Medicaid patients protect their patients’ health and safety.

Thus, the CMS mandate stands, and those facilities subject to CMS requirements will have to require the vaccine, subject to legal exemptions for medical or religious reasons.  Key compliance dates are now January 27, 2022, and February 28, 2022.

However, the OSHA mandate did not withstand the Supreme Court’s scrutiny and the Court viewed the OSHA mandate as going too far. The Supreme Court stated that it “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And it held that OSHA’s vaccine-or-test mandate was a major question because it is “a significant encroachment into the lives—and the health—of a vast number of employees.  The court then considered whether the Occupational Safety and Health Act plainly authorizes OSHA’s vaccine-or-test mandate, and held that it does not. The court viewed the Act as limited to “workplace safety standards, not broad public health measures.” To the court, although COVID-19 as a risk in many workplaces, it is not an “occupational hazard in most.” Allowing OSHA to regulate that “universal” risk of COVID, the court believed, “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”  The court therefore reimposed a nationwide stay blocking the OSHA vaccine-or-test mandate, making the OSHA mandate void.  As an employer, policies issued under the OSHA mandate can rescinded.  However, healthcare facilities under CMS have some looming deadlines to adhere to.

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